Opinion,
Me. Justice. Williams : .The plaintiffs are the owners of warrant No. 4821. The defendants have title to No. 3133'. Both tracts were surveyed for the Holland Land Company, and are á part of a large block of surveys made for that company by John Brodhead, deputy surveyor. The question is one of boundary, and depends primarily on the lines of the block to which these surveys belong.
The warrants for the Holland Land Company were issued in January, 1794, came into the hands of Brodhead in May of the same year, and were located on the ground soon after, in a single block. The district line and the sub-district line parallel with and ten miles west of it, were adopted as the eastern and western boundaries of the block. The land intermediate between these lines was appropriated by running east from the sub-district line five miles, the length of five tracts, then turning south the breadth of two tracts, and then returning west to the sub-district line inclosing ten tracts;' then going south the breadth of two tracts, and again' turning east five miles, south across two tracts and west to the sub-district line, inclosing another interior block of ten'tracts, and so on as he wfent south. In like manner the surveyor ran west from the district line five miles, north the breadth of two tracts, then returning to the district line inclosed ten tracts; and so on as he went north along the district line.
No. 3133 is the northeastern tract of an interior block resting on the sub-district line. No. 4821 is the northwestern tract of the opposite interior block resting on the district line. They adjoin, and in the returns of survey each calls for the other as an adjoiner. But the north line of the interior block to which 3133 originally belonged turns south at a chestnut corner. This corner is on the ground, and marked as a corner *223on four sides. The north line of the block to which 4821 belongs, turns north at a chestnut corner. This is also found upon the, ground marked on the east, west and north, and an original line extending north from it. The latter of these chestnut corners is about twenty rods east of the other, and about three rods further north. It is quite evident that the surveyor, failing to find the chestnut he had first marked, when he ran out his distance going west from the district line, marked another on three sides so as to make it a common corner of the tracts north of the east and west line, and then turned north.
The strip of land having the eastern chestnut as its northeast corner, and the western chestnut as its northwest corner, and extending south along the line which runs south from the western chestnut, is the subject of this controversy.
If the question depended simply upon the lines of the Brodhead survey, it would be easy of solution. The footmarks of the surveyor are readily followed. The western chestnut, marked as a corner for the tracts on the south, with an original line extending south from it, would fix the northeast corner and the east line of 313-3 beyond question. But in February, 1794, one hundred warrants for one thousand acres each, were issued to George Mead, warrantee. These warrants were put in the hands of Williams, then deputy surveyor of the district, and he proceeded to locate them in a large block, with lines of forty-five degrees. In May, 1794, Wilson, the agent of the Holland Land Company, filed a caveat against the acceptance of these surveys, and at about the same time Williams ceased to be deputy surveyor, and John Brodhead was appointed in his place. The warrants of the Holland Company were then put in the hands of Brodhead who proceeded to locate them in the manner already described. In making his surveys he paid no attention to the work done by his predecessor in the location of the Mead warrants, but overlapped it many thousand acres. In April, 1796, the proceedings upon the caveat ended in a compromise, by the terms of which the caveat was withdrawn as to all the Mead warrants except twenty-six, and as to these Mead relinquished all claim to the land covered by them. These warrants lay along the northeastern edge of the interference, and Mead’s withdrawal of claim under them *224and the withdrawal of the caveat by Wilson left the remainder of each block in compact form with a forty-five degree line as the boundary between them. This line cut diagonally through many of the Brodhead surveys, leaving a part of each to fall within the lines of the Mead warrants and an irregularly shaped part remaining on the Holland Company’s side of the division line. These fragments of surveys were after the compromise combined by Brodhead in such manner as to inclose, as nearly as practicable, the amount of land in each tract that the warrant authorized, and the body of surveys was then returned in October, 1796, as having been made in 1794, the time when the work relating to this block was actually done upon the ground.
The theory of the plaintiffs was, that in making the combination of fragments of surveys Brodhead had adhered to his original lines as run and marked in 1794, and that 3183 was therefore bounded on the east by the marked line running south from the western chestnut. The theory of the defendants was that in covering the irregular serrated strips between the boundary line and the unbroken parallelograms of the Holland Company’s block, Brodhead had found it necessary to depart from the original lines in several places, including the division line now in controversy, and had adopted for the northeast corner of 3133, as plotted by him, the southwest corner of 4792. Whether this was so or not was the controlling question in the case; but the defendants went further in their points, and asked the court to instruct the jury as follows: “ 4. There is no evidence that the line upon the ground claimed by the plaintiffs as the division line between warrants Nos. 4821 and 3133 was made by the surveyor as the division between the said warrants.”
This point was affirmed without comment or explanation. The jury was bound by this instruction, and we do not see that anything was left for their determination that was necessary to a verdict. The plaintiffs must show that the land claimed was within their warrant or they could not recover. If when their case closed there was no evidence to show that the line claimed by them as their western boundary was run as such, then clearly they had not inclosed the land in controversy, and were not entitled to a verdict for it. Nor can this answer be sustained *225on the assumption that the compromise line had made a change in the number of the warrants a“s well as in their outlines, or contour.
The line was run to separate the tracts lying on its opposite sides. They had no numbers at that time, and if they had, a change of them subsequently would be immaterial. The line was marked on the ground as a part of the work locating the interior block to which No. 3133 belonged, and what the deputy surveyor might do in plotting lines not so marked, or in giving a name or a number to the tracts at any time before returning his survey, could have no effect upon the lines which he had actually run and marked. When the compromise line was adopted so many of the Holland Company’s tracts or parts of tracts with the lines peculiar to them as fell below it, were by the terms of the compromise relinquished or abandoned to Mead and his surveys. So many of the tracts or parts of tracts with the lines peculiar to them as remained above that boundary, were unaffected by it, except that such tracts as were cut through lost so much of their territory and lines as fell below that line. Both 3133 and 4821 were cut through by the compromise line and lost part of their original territory and lines thereby. A change in shape on that side of each became necessary in order to conform to the Mead line, and a combination of the remnants of two or more original tracts in order to secure-for each warrant a sufficient quantity of land.
The plaintiffs claimed that except as to the new lines made-necessary by the change in form of these warrants, they were to-be located by the lines of 1794, and treated as part of the block of the Brodhead surveys. The defendants, on the other hand, contended that the tracts between the Mead line and the unbroken tracts of the Holland Land Company, were plotted into the irregular space along the Mead line after the compromise had been effected in 1796, and that in so doing the original work on the ground had been followed or disregarded as convenience in the division of the space had made it desirable. As to the common corner of 3133 and 4821, at the north end of the division line, they contended that both chestnuts bore the proper age, and that the calls for adjoiners in the original returns of survey showed that the eastern chestnut had been adopted by the deputy surveyor.
*226The question for the court and jury was whether there was such evidence of the adoption of the eastern chestnut as to overcome the presumption arising from the line on the ground running south from the western chestnut. If there was not, then the plaintiffs were entitled to recover. But the fourth point and its affirmance by the court took this question out of the case, for the jury was told that there was no evidence that the line depended on by the plaintiffs was ever run as the division line between the warrants. If this was so, there being no other line on the ground, then the plaintiffs had failed to close their survey or to inclose in any manner the land in controversy. It was of no consequence therefore whether the defendant’s theory as to the adoption of the eastern chestnut was correct or not, since the line relied on by the plaintiffs was found to be wholly unsupported by the evidence and could not sustain a verdict in their favor. But this answer overlooks what seems to us strong and pertinent evidence tending to show that the line on the ground was run by the surveyor as the division line between these surveys.
The white-oak in the angle of the north line of 3138 was conceded to be an original comer of the survey. An original line ran east from it to the western chestnut and ended there. The chestnut was marked as a corner on four sides, and from its south side an original line ran to and far into the Mead lands. These facts together with the connection between this work and the other lines of' the Brodhead block, and the correspondence of the work on the ground with the returns of the deputy surveyor, should have gone to the jury instead of being in effect withdrawn from them, and they should have been left at liberty to find from this evidence that the line on the ground was run and marked as the division line between these tracts, and was the line by which the rights of the parties were now to be settled. It is true the court refused in answer to the 5th and 6th. points to take the case from the jury, and submitted to them the question as to which of these chestnuts was the true northeast corner of 3133 ; but what was there left from which the jury could determine this question ? The original line having been discredited and taken from them, there remained only the calls for adjoiners and the measurements of the east and west lines from which the question of the adoption of one of these chest*227nuts as the common corner of the warrants could be determined. This the learned judge saw, and in directing their attention to this part of the testimony expressed his own opinion of its force in a way that must have been controlling with them. He said, “ it seems to me if this question is to be determined by the calls alone as found in the returns of survey and the certified connected drafts, you will find that the northwestern corner of 4821 is the common corner of the four tracts, 3142, 4792, 3133, and 4821, and if you so find your verdict will be for the defendants.
The plaintiffs have substantial grounds for complaining of this mode of submitting their ease to the jury. It overlooked the presumption arising from the fact that the work on the ground corresponded with the return of survey in age, and with the other lines of the block of which these warrants were part. It withdrew the western chestnut and the line south from it from the attention of the jury by the instruction that there was no evidence to show that it was run for the line of these warrants. It submitted the question of the true location of the common corner upon the evidence afforded by the calls and the measurements, and it gave the jury the benefit of the opinion of the court, that from this evidence they would conclude that the eastern chestnut was the true northeast corner of 3133. How much was left of their case when the jury retired to consider their verdict, it is not easy to see.
The second and sixth assignments of error are sustained. The seventh must also be sustained. The presumption to which it relates is not conclusive, but it is certainly prima facie, and the proof of the existence of a well marked line on the ground in a place corresponding fairly with the return of survey and bearing the proper age, with living corners of the timber called for, makes a case of location in the first instance, and puts him who denies the applicability of such a line to the land in controversy upon a showing of the facts and circumstances by which the presumption is to be rebutted. The rebutting evidence is under proper directions to be submitted to the jury, but the presumption stands until it is fairly overcome.
We take pleasure in commending the clearness and completeness with which this case is presented to us in the paper
*228books of the learned counsel for tbe respective parties. Some of the facts upon -which the questions were raised are novel and interesting, and they have been illustrated by maps and diagrams, and explained by the printed and oral arguments in a, manner that has been greatly helpful.
It is to be regretted that this protracted litigation could not-have ended with the trial in the court below, but we see no> escape from the necessity of sending it back for a new trial.
Judgment reversed, and venire facias de novo, awarded.